United States v. Michael Jeffrey Low

Defendant-Appellant Michael Low pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1), and to possession of cocaine in violation of 21 U.S.C. § 844 (a), reserving the right to appeal the district court’s denial of his motion to suppress evidence pursuant to Fed.R.Crim.P. 11(a)(2). We affirm the district court’s decision.

The following facts are based on the affidavit of Agent Hartman of the Drug Enforcement Administration (DEA) submitted in support of the warrant to search Low’s bags and the testimony of DEA Agent Johnson at Low’s preliminary/bail hearing (ER 5, 60). 1 On April 20,1988, Los Angeles Police Department Officer Leham noticed a man later identified as Low departing the Pan Am ticket counter at the Los Angeles International Airport (ER 65). Low appeared to be very nervous (“looking all around at other persons”) and when Low noticed Officer Leham looking at him, he immediately avoided eye contact by looking the other way (ER 65).

Officer Leham learned from the Pan Am ticket agent the following information: Low was flying under the name of Mark Lund; he had a reservation to fly to Honolulu that day on Pan Am flight 81…

joined by BREWSTER, District Judge, concurring:

I concur in the affirmance of Low’s judgment and conviction. I write separately to state my disagreement with the developing law in our circuit and elsewhere, regarding the legal significance of “retaining” an airline ticket.

We are told that the retention of an airline ticket “beyond the interval required for the appropriate brief scrutiny, may constitute a ‘watershed point’ in the seizure question.” United States v. Black, 675 F.2d 129, 136 (7th Cir.1982), cert. denied, 460 U.S. 1068 , 103 S.Ct. 1520 , 75 L.Ed.2d 945 (1983) (citations omitted). The timing of the retention of the ticket is critical. For example, our memorandum states that if the agent questioned Low after retaining the ticket, a seizure occurred. United States v. Woods, 720 F.2d 1022, 1025-26 (9th Cir.1983). If, however, the agent’s questions occurred during a brief detention of the ticket, no seizure results. Id.

Law enforcement officers stationed at airports to monitor passengers and, in appropriate cases, seize items of baggage suspected of containing narcotics have an enormously difficult job. They must identify “suspicious persons”; monitor their passage;…

887 F.2d 232 UNITED STATES of America, Plaintiff-Appellee, v. Michael Jeffrey LOW, Defendant-Appellant. No. 88-1355. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 16, 1989. Decided Oct. 5, 1989. Michael R. Levine, Federal Public Defender, and Thomas W. Murphy, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellant. Daniel Bent, U.S. Atty., and Michael K. Kawahara, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before CHAMBERS and WIGGINS, Circuit Judges, and BREWSTER * , District Judge. CHAMBERS, Circuit Judge: 1 Defendant-Appellant Michael Low pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841 (a)(1), and to possession of cocaine in violation of 21 U.S.C. Sec. 844 (a), reserving the right to appeal the district court's denial of his motion to suppress evidence pursuant to Fed.R.Crim.P. 11(a)(2). We affirm the district court's decision. 2 The following facts are based on the affidavit of Agent Hartman of the Drug Enforcement Administration (DEA) submitted in support of the warrant to search Low's bags and…